TITLE 29

State Government

Departments of Government

CHAPTER 84. DEPARTMENT OF TRANSPORTATION

§ 8401 Establishment of Department.

(a) The Department of Transportation is hereby established. The Department, through appropriate divisions, authorities, subdivisions, offices and administrations shall have the power to perform and shall be responsible for the performance of all the powers, duties and functions vested by law in the Department of Highways and Transportation immediately prior to July 1, 1976.

(b) The powers and duties of the Department of Transportation shall also include, but not be limited to, the following activities:

(1) Coordinating and developing, in cooperation with the federal government, other states, Delaware state agencies, counties, cities, councils and agencies comprehensive balanced transportation planning and policy for the movement of people and goods within the State;

(2) To be the lead agency for establishing and maintaining the continuing, comprehensive, cooperative transportation planning process pursuant to the existing and future provisions of Title 23, United States Code and the Urban Mass Transportation Act of 1964 as amended [49 U.S.C. § 5301 et seq.];

(3) To be the supervising and responsible planning staff for all urban and rural transportation studies and programs in the State and enter into any contracts, agreements and stipulations as required;

(4) To provide the necessary staffing, coordination and liaison required by present and future federal and state acts for transportation planning, programs, grant applications and required administration;

(5) Planning, designing, constructing, operating and maintaining those highway and public transportation systems under its jurisdiction;

(6) Preparing an annual transportation needs plan directed at the achievement of a coordinated and balanced transportation system for the State that is consistent with the state's social, economic and environmental needs and goals;

(7) To establish a selection process intended to promote engineering and design quality and ensure maximum competition by professional companies of all sizes providing engineering or architectural design services, pursuant to the authority granted in Section 307 of the National Highway System Designation Act of 1995, P.L. 104-59. In developing this process, the Department shall also comply with the Professional Services Negotiation Act, subchapter II of Chapter 69 of this title, as amended. In addition, the Department shall comply with limits on costs reimbursement, including, but not limited to, overhead limits, established by its Consultant Policy Committee. In setting such limits, the Consultant Policy Committee shall consider the goal of the selection process set forth in the 1st sentence of this subsection, as well as the reasonable cost of architectural or engineering services.

(2) "Corridor route" means any existing or proposed road in an urban or rural area which is classified as part of the "principal arterial highway system" as defined in the National Highway Functional Classification Studies on record with the Department and which serves traffic corridor movements of substantial statewide or interstate travel and as to which the concept of service to abutting land is subordinate to the provisions of travel service to major traffic movements.

(3) "Department" means the Department of Transportation.

(4) "Deputy Secretary" means the Deputy Secretary of the Department of Transportation.

(5) "Director" means the Director of the Transportation Authority and/or the Director of the Division of Highways and/or the Director of the Office of Administration.

(6) "Division" means the Division of Highways.

(7) "Secretary" means the Secretary of the Department of Transportation.

(a)(1) The administrator and head of the Department shall be the Secretary of the Department of Transportation, who shall be a person qualified by training and experience to perform the duties of the office and preference shall be given to a resident of this State provided that such person is acceptable and equally qualified. The Secretary shall be appointed by the Governor, with the advice and consent of the Senate, and shall serve at the pleasure of the Governor. The Secretary shall be paid an annual salary not in excess of $34,000. The Secretary of the Department of Finance shall become a bona fide resident of the State within 6 months after his or her appointment; provided, however, that upon good cause shown, the Governor may grant an additional extension of 6 months. After becoming a resident of the State, the Secretary shall continuously be a resident of the State as long as he or she retains the office. Failure to obtain or retain such residency shall serve to terminate said office.

(2) The Secretary may designate a Deputy Secretary who shall be a person qualified by training and experience to perform the duties of his or her office. The Deputy Secretary shall serve at the pleasure of the Secretary and shall have all the powers, duties, and functions of the Secretary, except the power to remove employees of the Department or to fix their compensation.

(b) In the event the position of Secretary is vacant, the Governor, by appointment, shall have the power to fill the position or positions of division director as are vacant. Directors so appointed shall serve at the pleasure of the Governor, and upon the position of Secretary being filled such directors may be removed by the Secretary with the written approval of the Governor.

(c) In the event of death, resignation, temporary incapacity or removal of the Secretary and prior to the appointment of a successor, the Governor may appoint the Deputy Secretary or director of any division of the Department to serve as Acting Secretary. The Secretary may, during an absence from the State, appoint the Deputy Secretary or director of any division of the Department to serve as Acting Secretary during such absence. In either case, the Acting Secretary shall have all the powers and shall perform all the duties and functions of the Secretary during the Secretary's absence or incapacity or until a successor is duly qualified and appointed.

(1) To supervise, direct and account for the administration and operation of the Department, its divisions, subdivisions, offices, functions and employees;

(2) To appoint, and fix the salary of, with the written approval of the Governor, the following division directors and office heads, who may be removed from office by the Secretary with the written approval of the Governor and who shall have such powers, duties and functions in the administration and operation of the Department as may be assigned by the Secretary:

a. A Director of the Division of Highway Operations, who shall be known as the Director of Highway Operations and who shall be qualified by training and experience to perform the duties of the office. The Director of Highway Operations shall be, at the time of appointment, a registered professional engineer in this State or qualified for such registration;

b. A Director of the Transportation Authority who shall be qualified by training and experience to perform the duties of the office;

c. An administrator and head of the Office of Administration, who shall be known as the Director of Administration and who shall be qualified by training and experience to perform the duties of the office;

d. A Director of the Division of Motor Vehicles who shall be known as the Director of Motor Vehicles and who shall be qualified by training and experience to perform the duties of the office.

(3) To appoint such additional personnel as may be necessary for the administration and operation of the Department within such limitations as may be imposed by law;

(4) To collect and analyze statistical and planning information on all modes of transportation and make studies required to carry out state transportation programs; to coordinate and develop, in cooperation with federal, state, county and local governmental agencies, comprehensive balanced transportation planning, programming and policy for the movement of people and goods within the State; to prepare a statewide master transportation plan that is consistent with the state's social, economic and environmental needs and goals; and to develop a unified intermodal transportation planning program in cooperation with the Division of Small Business, Development and Tourism and other planning agencies to fulfill the transportation planning requirements of the federal government;

(5) To establish, consolidate or abolish such divisions, subdivisions and offices within the Department or the Authority or transfer or combine the powers, duties and functions of the divisions and offices within the Department or the Authority as the Secretary, with the written approval of the Governor, may deem necessary, provided that all powers, duties and functions required by law shall be provided for and maintained;

(6) To make and enter into any and all contracts, agreements or stipulations, and to retain, employ and contract for the services of private and public consultants, research and technical personnel and to procure by contract, consulting, research, technical and other services and facilities, whenever the same shall be deemed by the Secretary necessary or desirable in the performance of the functions of the Department and whenever funds shall be available for such purpose. All necessary legal services shall be provided pursuant to Chapter 25 of this title;

(7) To delegate any of the Secretary's powers, duties or functions to a director of a division except the power to remove employees of the Department or to fix their compensation;

(8) To establish and to promulgate such rules and regulations governing the administration and operation of the Department as may be deemed necessary by the Secretary and which are not inconsistent with the laws of this State. No such rule or regulation shall extend, modify or conflict with any law of this State or the reasonable implications thereof;

(9) To maintain such facilities throughout the State as may be required for the effective and efficient operation of the Department;

(10) To adopt an official seal or seals for the Department;

(11) In addition to the Secretary's other powers, duties and functions, the Secretary shall serve as an ex officio, nonvoting member of the Public Service Commission.

The Office of Administration is hereby established having powers, duties and functions as follows:

(1) The Office of Administration shall have the power to perform and shall be responsible for the performance of all the powers, duties and functions heretofore vested in the Controller of the State Highway Department, as set forth in Chapter 1 of Title 17;

(2) In addition to the foregoing, the Office of Administration shall administer and coordinate the record keeping, transportation, fiscal affairs, data processing, statistics, accounting, personnel and such other general services for the Department as the Secretary may deem necessary for the proper, efficient and economical operation of the Department and shall coordinate such general services and business administration with other departments, agencies and offices of the government of this State.

The Division of Highways is hereby established having powers, duties and functions as follows:

(1) The Division of Highways shall have the power to perform and shall be responsible for the performance of all the powers, duties and functions heretofore vested in:

a. The State Highway Department pursuant to Chapters 1, 3, 4, 5, 6 [repealed], 7, 9, 11, 12, 13 and 15 of Title 17 and Chapter 5 of Title 21; provided, however, that the powers, duties and functions of the Controller of the State Highway Department, as prescribed in Chapter 1 of Title 17, shall be performed by the Office of Administration as set forth in § 8405 of this title;

b. The State Highway Department pursuant to §§ 4504 and 4505 of Title 21.

(2) The powers, duties and functions assigned to and exercised by the State Highway Department in relation to the public lands of this State, as set forth in Chapter 45 of Title 7, are hereby removed and such powers, duties and functions are transferred to and shall be exercised by the Department of Natural Resources and Environmental Control.

(b) The Council shall serve in an advisory capacity, except as otherwise provided, to the Secretary, the Deputy Secretary, the Transportation Directors and the Governor, and shall:

(1) Consider matters relating to transportation in the State and other matters such as the budget and capital improvement program which may be referred to it by the Governor or the Secretary of the Department;

(2) Study, research, plan and advise on matters it deems appropriate to enable the Department to function in the best possible manner;

(3) Have final approval of and adopt the Department of Transportation Capital Improvements Program which shall be submitted annually to the Council by the Department;

a. The Council shall review the updated Department capital improvements program prepared by the Department of Transportation, and established pursuant to § 8419 of this title, as amended. The updated Capital Improvements Program shall cover a period of not less than 6 years. The draft Capital Improvements Program shall be available to the public and the Council shall publish notices in a newspaper of general circulation in each county. The notices shall specify dates and places at which public meetings will be held, by the Council, 1 in each county, at which time the program will be reviewed and publicly explained and objections or comments may be made by an individual or group. Public meetings shall be held at least 2 weeks after the draft Capital Improvements Program is made available to the public. The notices shall also specify the name and address of the person to whom written comments may be sent. The written comments must be received by the person within 10 days after the last public meeting, which must be scheduled no later than September 30 of each year. Following the written comment period, the Council may make priority changes to the proposed Capital Improvements Program in an open meeting by documenting the reasons and justifications for changes, using the priority formula-based processes described in § 8419 of this title, and shall adopt the program by March 1 of each year. The Capital Improvements Program as prepared by the Department and as adopted by vote of the Council shall become the adopted Capital Improvements Program for the upcoming fiscal year. The adopted program shall be submitted to the agency charged with preparation of the State Capital Improvements Program and members of the General Assembly on/or before March 15 of each year for inclusion in the state capital improvements program for the following fiscal year.

b. The Department capital improvements program, as recommended to the agency charged with preparation of the State's Capital Improvements Program, shall set forth estimated expenditures by project and/or program for engineering, rights-of-way and construction of any major capital transportation project/program when applicable. The program shall include detailed information by project as to location, description of improvement, areas of deficiency and priority rating;

(4) Have final approval of and adopt all corridor route projects in connection with new road alignments, which project shall be submitted to the Council by the Department;

(5) Have final approval on matters relating to highway transportation priority planning as set forth in § 8419 of this title, as amended;

(6) Review and comment on the issuance, suspension, revocation or reinstatement of all certificates of public convenience and necessity issued pursuant to Chapter 18 of Title 2, as amended.

(c) The Council shall adopt all motions and approve all projects only by a majority vote of the entire membership of the Council. All voting shall be done in person and at regular or special meetings of the Council. If the Council, for any reason, shall fail to approve and adopt in writing within a reasonable period of time after receipt of the programs or projects referred to it, the Secretary of the Department may, with the approval of the Governor, upon 15 days prior written notice to the Chairperson of the Council, give final approval to said programs or projects notwithstanding the absence of the Council's written comments or approval.

(d) The Council shall consist of 9 members, with the members of no 1 political party holding a number of seats greater than one in excess of that held by the members of any other political party. This provision shall be applied only as existing Council members complete their present terms and all appointments made after July 18, 1990, shall be made in a manner sufficient to implement the political balance sought by this section, upon completion of the terms of the existing council members, at the earliest possible date.

(e) The Governor shall appoint the members of the Council, all of whom shall reside in the State, with a minimum of 2 members residing in any 1 county. A Chairperson of the Council shall be appointed by the Governor from the membership of the Council to serve at the Governor's pleasure.

(f) No person shall be eligible for appointment to the Council on Transportation who is a director, officer or employee of any public carrier, as defined by Chapter 18 of Title 2, as amended, or who owns or directly or indirectly controls more than 1 percent of the stock of any public carrier.

(g) No member of the Council shall hold any office or position or be engaged in any business, employment or vocation, the duties of which are incompatible with the duties of their membership on the Council.

(h) Members of the Council shall serve for a term of 3 years, provided however, that after the expiration of 3 years such members shall continue to serve until such time as the Governor appoints a replacement. Members of the Council on Transportation existing prior to January 1, 1990, shall be permitted to complete the existing term of their membership, subject to the other provisions of this section as amended. As the terms of their existing members of the Council expire, each of the first 3 appointments of members of the Council shall be for a term of 1 year, and the next 3 such appointments shall be each for a term of 2 years. Thereafter, all appointments shall be made for 3 year terms such that three members of the Council are appointed each year.

(i) Members of the Council shall serve without compensation, except that they may be reimbursed for reasonable and necessary expenses incident to their duties as members of the Council.

(j)(1) Failure to attend 3 consecutive regular meetings of the Council shall be construed as a request by that member to resign from the Council and a replacement may thereafter be appointed in the member's stead.

(2) Members may be removed only for just cause, except as otherwise provided herein. Prior to removal, members shall be entitled to notice of the reason for removal and shall be entitled to a hearing before the Governor or the Governor's designee.

(k) Any replacement appointment to the Council to fill a vacancy prior to the expiration of the term shall be filled for the remainder of the term.

(a) The Council on Transportation shall have access to all books, records, reports and other documents relating to the divisions and offices of the Delaware Department of Transportation unless otherwise prohibited by law.

(b) The Chairperson of the Council on Transportation shall make an annual report of the Council's operations to the Secretary, the Governor and the General Assembly, and render such other reports as the Secretary, the Governor or the General Assembly may from time to time request or may be required by law.

The Department, through appropriate divisions, subdivisions and offices, shall have the power to perform and shall be responsible for the performance of all the powers, duties and functions vested by law in the State Highway Department and the Department of Transportation immediately prior to the effective date of this chapter and which are not otherwise specifically transferred to the Department by this chapter.

Any and all rights of appeal now existing by law with respect to any act or acts constituting the exercise of any function or functions transferred by this chapter to the Department or to any divisions or subdivision thereof shall continue to exist with respect to such act or acts as hereafter performed by the Department or by the division, subdivision or office to which such function is transferred by this chapter and each such appeal shall be perfected in the manner heretofore provided by law.

(a) All employees of any commission, board, department, council or agency, to the extent that the same are consistent with this chapter and in connection with a function transferred by this chapter to the Department, shall continue and be deemed to be the employees of the Department on the effective date of this chapter and, where applicable, with all the benefits accrued as merit employees as of the effective date of this chapter.

(b) All definitions and references to any commission, board, department, council or agency which appear in any other act or law shall, to the extent that the same are consistent with this chapter and in connection with a function transferred by this chapter to the Department, be construed as referring and relating to the Department of Transportation as created and established by this chapter.

(c) All definitions and references to any director, commissioner, executive secretary, commission, board or council member, or other similar person which appear in any other act or law, shall, to the extent that same are consistent with this chapter, and in connection with a function transferred by this chapter to the Department, be construed as referring or relating to such person or persons and their powers, duties and functions as established and created by this chapter.

The Secretary of the Department shall make an annual report to the Governor and the General Assembly of the Department's operations and render such other reports as the Governor or General Assembly may from time to time request or as may be required by law.

Any misnomer shall not defeat or annul any gift, grant, devise or bequest to the Department if it sufficiently appears by the will, conveyance or other writing that the party making the same intended to pass and convey thereby to the Department or to any commission, board, department, authority, council or agency, to which, by this chapter, the powers, duties and functions have been transferred to the Department, the estate or interest therein expressed or described.

(a) The Secretary, in cooperation with the division directors, shall prepare a proposed budget for the operation of the Department to be submitted for the consideration of the Governor and the General Assembly. The Department shall be operated within the limitation of the annual appropriation and any other funds appropriated by the General Assembly.

(b) Special funds may be used in accordance with approved programs, grants and appropriations.

All other laws, or parts of laws, now in effect inconsistent with this chapter are hereby repealed, superseded, modified or amended as far as necessary to conform to, and give full force and effect to, this chapter.

(1) Establish a method of determining current needs and costs of the entire multi-modal transportation requirements in the State which will be utilized in allocating capital funds by transportation capital improvement program. The needs and costs will be updated annually.

(2)a. Establish a formula-based process which shall be used for setting priorities on all Department transportation projects and which shall consider, but not be limited to the following: Safety, service and condition factors; social, economic and environmental factors; long range transportation plans and comprehensive land use plans; and continuity of improvement.

b. The formula based process shall not be utilized for setting priorities for dirt roads, suburban street aid projects, municipal street aid projects or system preservation projects. System preservation projects will be prioritized based upon performance measures established in the Department for pavement management, bridge management and safety management projects.

(3) Review and approve the Long Range Transportation Plan, to be used in connection with the Department's internal review process for transportation projects. Department programs or projects utilizing other than state, Transportation Trust Fund or federal funds shall be indicated within the Capital Improvements Program with their priority rating as specified in paragraph (2)a. of this section, but the costs shall not be added to the total estimated cost of the overall program. An annual written report including this data shall accompany the Department recommendations.

(4) Update and prepare annually a statewide Capital Improvement Program for submission to the Council of Transportation. The first year of the Program shall consist of transportation programs and projects to be advanced in that year based upon the prioritization ranking process specified in paragraph (2) of this section. No program or project will be funded for implementation except those that can with reasonable certainty be advertised for bid that year. Proposed projects or programs for the remaining years of the 6-year Capital Improvement Program shall be pursued in accordance with the prioritization ranking process specified in paragraph (2) of this section. The estimated cost of the Program for each year shall not exceed the estimated federal and state funds available for transportation purposes during that year. The estimated federal and state fund availability will be developed annually by the Department of Transportation based upon the dollar amount of funds available and the ability to use the funds for a specific program or project.

(5) Review any priority changes that would result in the introduction of new projects or programs to a proposed or adopted Department Capital Improvements Program and make recommendations on such priority changes or introduction of new projects or programs based on the criteria and formula-based process which establish the priorities or projects and programs. The Department shall fully document its recommendations in a written report to the Council on Transportation.